TCHERINA DUNCOMBE, APPELLANT,
v.
PHYLLIS S. ADDERLY, ANTHONY L. SWILLEY, SR., AND G. YVONNE SWILLEY CARTER, APPELLEES
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Tcherina Duncombe sought attorney's fees for services rendered to her father's estate under Florida statute section 733.106(3). The probate court denied the fees because there was no increase in estate value or demonstration that she carried out the testator's intent. The appellate court reversed, holding that the statute should not be read so narrowly and that preventing the appointment of a conflicted personal representative constitutes a compensable benefit to the estate.
The court reversed and held that the statutory requirement of a 'benefit to the estate' should not be read narrowly. Preventing the appointment of a personal representative named in the will, particularly where that person has a conflict of interest, is a basis for awarding attorney's fees. The statute does not require proof of an increase in estate value or advancement of testamentary intent.
[1] An attorney rendering services to an estate may be awarded reasonable compensation from the estate under section 733.106(3).
[2] The "benefit to the estate" for purposes of attorney's fees is not restricted to services that enhance the estate's value or assets.
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Join FLexlaw to unlock all legal intelligence“any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate”
The relevant statutory provision at issue, section 733.106(3), setting forth the basis for attorney's fee awards in estate matters.
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Join FLexlaw to unlock all legal intelligenceDuncombe is the daughter of a decedent who suffered from Alzheimer's from 1995 until her death in 2003. During this period, the appellees (her sibling…
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KLEIN, J.
The probate court denied appellant’s petition for attorney’s fees for rendering services to an estate, because “there has been no increase in value to the estate, nor has it been demonstrated that the petitioner carried out the intent of the testator.” We conclude the statute authorizing fees should not be read so narrowly and reverse.
Duncombe is the daughter of the decedent, and the appellees, her adversaries in these proceedings, are also children of the decedent. The appellees petitioned for appellee Adderly or her lawyer to become the administrator of the estate. Dun-combe objected and petitioned the court to appoint a disinterested third party.
At the hearing on the competing petitions for administration it was stipulated that, from 1995 until her death in 2003, decedent suffered from Alzheimer’s. During this period the appellees procured transfers of decedent’s real estate to themselves. It was Duncombe’s position that these transfers were improper, that the estate would have to challenge those transfers, and that Adderly, who was one of the transferees, had a conflict of interest, as did her lawyer. Duncombe also opposed probate of a handwritten one page will, executed in 1995, which named Adderly as administrator of the estate.
The court did not admit the will to probate and denied appellee’s petition to appoint Adderly or Hall as administrator. The court granted Duncombe’s petition to appoint a third party because there was a potential conflict of interest between Ad-derly and the estate. Duncombe then sought attorney’s fees incurred during these proceedings under section 733.106(3), which provides “any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” The trial court believed that there had to be an enhancement in value or an advancement of the testator’s intent as set forth in the will, citing Samuels v. Estate of Ahern, 436 So. 2d 1096, 1097 (Fla. 4th DCA 1983), in which we stated:
Thus, an attorney who has rendered services to an estate may apply for an award of attorney’s fees. This provision has been interpreted as requiring that the services benefit the estate. The authorities are clear that the term, “benefit” as used in this context is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in simply effectuating the testamentary intention set forth in the will.
[citations omitted.]
We do not read Samuels that narrowly. Preventing the appointment of a personal representative named in the will is a basis for the award of attorney’s fees, Baumer v. Howard, 542 So. 2d 400 (Fla. 1st DCA 1989), as is obtaining the removal of a representative, In re Estate of Eisenberg, 433 So. 2d 542 (Fla. 4th DCA 1983).
Appellees argue that we should affirm because no abuse of discretion has been demonstrated, but that is not the standard of review. Under the undisputed facts in this case, neither Adderly, a transferee of some of the property, nor her lawyer, could have served as personal representative if an interested party objected. The error in this case involved the interpretation of the words “benefit to the estate” in section 733.106(3). We review statutory interpretation de novo. San Martin v. DaimlerChrysler Corp., 983 So. 2d 620 (Fla. 3d DCA 2008). Reversed.
HAZOURI and DAMOORGIAN, JJ., concur.
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Georges M. Delbrouck v. Eberling, 226 So. 3d 929 (Fla. 4th DCA 2017)…ssue of material fact and where the moving party is entitled to judgment as a matter of law. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). We also review de novo the interpretation of statutes. Duncombe v. Adderly, 991 So. 2d 1013, 1015 (Fla. 4th DCA 2008). Here, the trial court committed two errors in granting the motion for summary judgment. First, it was error to grant the motion for summaiy judgment on the basis that appellant did not have standing. Second, because appel…
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Hampton v. Est. OF Clifford L. Allen, 198 So. 3d 954 (Fla. 5th DCA 2016)…L. Allen’s intent as embodied in his will. We agree. Because the trial court’s decision to deny Hampton’s request for attorney’s fees depended on the interpretation of section 733.106(3), the standard of review is de novo. See Duncombe v. Adderly, 991 So. 2d 1013, 1015 (Fla. 4th DCA 2008). Section 733.106(3) provides: “Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.’? This provision has beén interpreted as requiring that an attorney’s services bene…
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Ramsey Frank v. Conlan (Fla. 4th DCA 2026)…material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a). “We also review de novo the interpretation of statutes.” Delbrouck v. Eberling, 226 So. 3d 929, 932 (Fla. 4th DCA 2017) (citing Duncombe v. Adderly, 991 So. 2d 1013, 1015 (Fla. 4th DCA 2008)); see also Westport Recovery Corp. v. Midas, 954 So. 2d 750, 752 (Fla. 4th DCA 2007) (“Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo.”); Bivins v. Rogers, 1…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Samuels v. Est. OF Lucia S. Ahern, 436 So. 2d 1096 (Fla. 4th DCA 1983)
- Hugo SAN Martin & Mark Nelson v. Daimlerchrysler Corp., 983 So. 2d 620 (Fla. 3d DCA 2008)
- In re Est. OF Henry Eisenberg, 433 So. 2d 542 (Fla. 4th DCA 1983)
- Baumer v. Howard, 542 So. 2d 400 (Fla. 1st DCA 1989)